Phil Matier: Welcome back. California could have to hand over some documents they’ve been trying to keep under wraps.

Maria Medina: It’s interesting. A Superior Court judge ruled the state must release the papers discussing the risk of cell phone use. Julie has more on the battle for public information in this weekend’s Consumer Watch.

Julie Watts: Yes, the documents were written by the state’s Environmental Health Investigations branch, believed to contain cell phone radiation warnings and recommendations for public use.

But the state refused to hand them over when requested by the director, by a director at UC Berkeley’s School of Public Health.

So he sued the state under the [California] Public Records Act, and Friday, we asked Joel Moskowitz why.

M: It will inform the public that there is indeed concern among the health professionals within the California Department of Public Health that cell phone radiation is a risk, and it will provide them with some information about how to reduce those risks.

J: And why do you think the state is trying to suppress this document?

M: They claim that they are concerned that this would lead to chaos and confusion among the public. I suspect that they were afraid of the reaction of the telecommunications industry should they publish this document; in fact, they even argued that in their brief.

J: Now in a tentative ruling Friday, a judge said the documents are in fact public record, stating in part there is significant public interest in DPH’s investigation into risks associated with cellular use and advising the public about those risks.

Moskowitz cites new research that finds that quote a significant relationship between cell phone of 10 or more years and increased brain tumor risk. However, the FCC officially says there is no evidence of a quote definite link between wireless devices and cancer.

Now the Department of Public Health wouldn’t comment on the ruling or if it intends to release the document. They could appeal. Joining us today is Claudia Polsky who represented Dr. Moskowitz in this case against the state.

So, Claudia, I have to start with why do you believe that these documents are public records? Did public funds, did taxpayer dollars pay for this research?

C: Absolutely, Julie. This is your money, my money, viewers’ money, Taxpayer- funded scientific research over a period of years resulted in a review of the scientific literature about cell phone risk and the production of a document that was supposed to reach the public informing people about how to reduce risks from cell phone use.

J: And we aren’t exactly sure why it never did reach the public. The state’s primary argument was that the document is a draft and therefore exempt from the public records act.

Now the court ruled that. In order to use that exemption, the state would have to prove three things:

1) that it is in fact a preliminary draft, not its final form

2) that the document would not normally have been retained by the agency so we couldn’t request it, and then

3) that the harm in releasing it outweighs the public interest. On that point, the state argued releasing it would cause panic.

So what did the court find on all three of these points? Again, when I say we, I mean we as the public like have a right to public information.

C: Absolutely, Julie. So the first thing the court found was that this document is not a draft. This document is a final document that the Department of Public Health is simply choosing not to release. And the judge actually looked at the document in her private chambers before making that ruling and she looked at versions of the document going back to 2010. And she said that in seven years of waiting for release, basically all that’s happened is some word-smithing in the department. There’s been no change to the scientific portion.

J: So, not a lot of re-writing. And again, this is based on research that began in 2010 but the agency chose not to release the document that it’s been revising.

C: That’s right. And since 2010, a number of department managers have acknowledged that they have kept copies of the document, and that’s another part of the legal test. If something is just a rough draft, you don’t keep it in your agency for several years. So, the judge also said this is not a draft because you’ve retained it in your normal course of business.

And the final and most important thing the judge said is that the public interest in releasing this absolutely outweighs the interest in continuing to withhold it. She said that the view that the Department of Public Health should keep information about possible risk from the public, because the public just couldn’t act responsibly with that information, was quote paternalistic.

J: Right. The guidance, she’s noted similar guidance has not caused quote public hysteria. And there has been similar guidance The state of Connecticut actually issued similar guidance which I believe, what can you tell us what they recommend in terms of public use.

C: Yeah, the Connecticut guidance is thorough and very responsible. It doesn’t say all the scientific data we’d like is in. But it says there is some preliminary cause for concern in peer-reviewed literature, and if you want to do everything you can to use your cell phone in the most health-protective manner while we wait for more definitive science, you can do everything possible to minimize the amount of time that your cell phone is close to your body.

J: And they talk specifically about sleeping with your cell phone or touching the cellphone to your body.

C: Yeah, They talk about not only using things like wireless devices or texting when the phone is in active use, but when the phone is on and you are not actively using it, there are many hours a day that people typically have it pressed against their body, in a front pocket, in a bra. Or, for example children sleeping with their cellphone right by their head. None of those are advised practices.

J: Many people use it as their, I use it as my alarm clock so it’s right by my head.

C: And CT Department of Health would implicitly say if you read its guidance, make the alarm louder and put it a few feet from your bed. Don’t put it right next to your head. And put your cell phone in your bag, not in your bra, not in your pocket. Those are precautions.

J: And I don’t know if this helps, but I always put it in airplane mode when it is right next to my head.

So we should note that the court argues, or rather DPH has not responded, we did ask to speak to DPH and they said they are not going to comment on this pending litigation. But if you’re concerned, the FCC does have some guidelines and they don’t, basically what you just said, simply don’t touch the phone to your body Every cell phone user manual does come with a recommended distance that it was tested for safety, somewhere between about a quarter of an inch and half an inch.

Thank you so much for being here today. We appreciate your insight into this case and of course we’ll continue to cover it and wait for those documents to be released, if they are in fact released.